Carla Lockhart: The issue of Drumcree must now be approached as a pure question of law

The unionist community has no confidence in the current composition of this commission, in particular the chair who presided over the appalling handling of the Drumcree determination, and all the issues that have been uncovered. That is not a minority position within unionism, but rather one of (rare) unanimity.

It is shared by the DUP, TUV, UUP, PUP, Loyal Orders and Ulster Bands Forum (representing over 660 bands and circa 30,000 people). It is the position of every single unionist member of Parliament and peer. Indeed, even SDLP representatives have effectively made clear that there should be resignations. Not even Sinn Fein have been able to come to the defence of this commission.

In those circumstances, it is objectively established, overwhelmingly, that the unionist community have no confidence in the current chair and fellow commissioners. That is not going to be restored because the commission provides self-serving assurances, or because the secretary of state tells the unionist community that such assurances should restore what limited confidence there ever was in this body.

The longer the chair and her fellow commissioners cling to office, the more damage to the parading framework is being done.

But this is not just a community and political question as to ‘confidence’ in the commission, there are freestanding legal ramifications.

In public law, decision makers must not only be free of any bias or pre-determination but must also be seen to be so. It is unthinkable that in any other public body exercising decision making powers, that if their initial decision was quashed, particularly in the circumstances of the Drumcree case, that the same decision-makers would be the ones to reconsider it. Yet that is precisely what the remaining commissioners think should occur.

This is despite - on the basis of what we currently know - not one of them disagreeing with or repudiating Billy Gamble’s comments, but more fundamentally the substantive content of the determination itself, which apparently all commissioners stood over, notwithstanding at least two had not even read it.

The commission fundamentally erred in how they approach the Freedom of Assembly test as a matter of rights, and their clear position - set out expressly at paragraph [26] of the determination for Drumcree Sunday - that ‘dialogue’ was a pre-requisite to the least possibility of a parade was not only illogical and irrational in so far as it enshrined a ‘hecklers veto’ to those from the nationalist and republican community who have everything they want and therefore are incentivised to continue their obstinate refusal to talk, but it was also entirely contrary to their statutory duty to promote mediation.

This duty is not severable from the exercise of their other powers, but must be discharged alongside those powers, including making determinations.

In light of those clearly erroneous and pre-determined positions, as a matter of law any future determination on Drumcree made by the current commissioners would be vulnerable to legal challenge, incurring yet further public money and court time. The capability of these commissioners to discharge their functions faces insuperable legal hurdles.

I will continue to press these issues with the secretary of state, including in Parliament. They aren’t going away, and the commissioners cannot simply seek to brazen this out. If anything, the lack of confidence in their position is becoming more pronounced rather than in any way dissipating.

In the near future, a new application will fall to be determined. For the first time in 28 years, it should be determined applying the proper legal framework.

The Parades Commission, if properly analysed, has always treated the question of contentious parades as one of community relations. It is not. It is a legal question, rooted in the statutory provisions, and associated guidelines, in the Public Processions Act 1998 and, most importantly, human rights law. This has never been properly applied, rather it has been used as superficial gloss for what in truth are political determinations on what are legal questions.

It is my firm view that Drumcree must now be approached as a pure question of law. Ultimately, this is about the application of human rights provisions. If those tests are applied faithfully, then the continued complete prohibition on the completion of the 1998 church parade cannot be sustained.

I very much welcome the Portadown district’s offer of mediation on the issue without precondition. It was disappointing this was met with such venom by Sinn Fein. I trust this will factor heavily in the upcoming determination and balancing exercise.

Carla Lockhart is DUP MP for Upper Bann